LEGAL PRINCIPLE: CIVIL PROCEDURE – Waiver – Essential Elements Required to Establish Waiver
PRINCIPLE STATEMENT
To amount to waiver, two elements must co-exist: (i) the party against whom the doctrine is raised must have knowledge or be aware of the act or omission which constitutes the waiver; and (ii) he must do some unequivocal act adopting or recognising the act or omission.
RATIO DECIDENDI (SOURCE)
Per Iguh, JSC, in Olatunde v. Obafemi Awolowo University (1998) NLC-441993(SC) at p. 24; Paras B–C.
"To amount to waiver, express or implied, two elements must co-exist. Namely: (i) the party against whom the doctrine is raised must have knowledge or be aware of the act or omission which constitutes the waiver; and (ii) he must do some unequivocal act adopting or recognising the act or omission."
EXPLANATION / SCOPE
Waiver requires knowledge and an unequivocal act. The party must be aware of the right being waived. The act must clearly indicate waiver. The principle applies to contractual and procedural rights. The court will not infer waiver lightly. The rule protects parties from unintentional loss of rights. The burden of proving waiver is on the party asserting it.